I have put my “partisanship” on hold long enough to write this piece. Please pause yours before reading…
Article 2, Section 2, Clause 2 of the United States Constitution provides in part:
“… and [the President] shall nominate, and by and with the Advice and Consent of the Senate, Judges of the Supreme Court…”
In 2016 Senate majority leader Mitch McConnell refused to allow the hearings required to provide President Barack Obama the “advice and consent“ of the Senate with regard to his nomination of Merrick Garland to replace the deceased Justice Antonin Scalia on the United States Supreme Court. Garland received bipartisan Senate approval in 1997 and since then has been a sitting Judge on the United States Court of Appeals. The justification given by McConnell was that the appointment occurred in an election year and the voters deserved the right to determine who as President would make the nomination. The nomination occurred on March 16th of the election year.
Now, on September 26, 2020, Mitch McConnell commits to press forward with all due haste to provide the Senate’s advice and consent to President Donald Trump‘s nomination of Amy Coney Barrett to replace deceased Justice Ruth Bader Ginsberg on the Court. Judge Barrett received bipartisan Senate approval in 2017 and since then has been a sitting Judge on the United States Court of Appeals. This nomination comes within weeks of the upcoming presidential election. Senator McConnell‘s justification for this about face is that both the Presidency and Senate are in the hands of the same political party.
Without question, in 2016 and 2020 a sitting president nominated a qualified jurist to become a Justice of the United States Supreme Court. The Constitutional requirements were in place on each occasion for the Senate to undertake its duty to give “advice and consent“.
Senator McConnell‘s conduct in 2016 was nothing but transparent hypocrisy. There is nothing in the United States Constitution to support the position that he took as Senate majority leader. It is unnecessary for him to advance any justification for granting Senate hearings in 2020. He is merely trying to “put lipstick on a pig” of his own creation.
Voices raised in righteous indignation are justified. However, calls to obstruct the 2020 nomination process or (worse yet) take action such as “packing the court“ (the appointment of additional Justices solely for the purpose of swinging the courts ideology) are the pursuit of a wrong in furtherance of a prior wrong.
There is nothing in the United States Constitution that qualifies the appointment of a jurist based upon his or her ideology or religion. Article 6 provides in part that all officials:
“…shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”
Like it or not, Amy Coney Barrett deserves hearings to confirm or deny her appointment to the United States Supreme Court. That is what the United States Constitution provides.
The denial of hearings in 2016 was inconsistent with Senator Mitch McConnell‘s oath to support the United States Constitution. Therein lies one wrong that for those on the left demands justice in the form of another wrong, obstruction of the appointment process. The legitimate remedy in 2020 is McConnell’s defeat at the polls.
You may now restore your partisanship. Peace Everyone. Pete
Liz says:
Here, here… I don’t like it, I don’t like what it might mean for women’s right etc – but I believe that this is the law.
Pete Schloss says:
Liz, those are my sentiments. I look for the pendulum to swing toward the blue. I just hope that the blue does not push the pendulum too far.
Phil Gettig says:
Pete, you’re spot on and I agree on all points. Unfortunately our friends on the right tend to abandon such cogent thinking for self serving kindergarten logic whenever it suits their goals. Mitch and Lindsay are both ethical contortionists of the first order.
Pete Schloss says:
Phil, it’s always good to hear from you and I am grateful that you read these posts. I like your phrase, “ethical contortionist“. I will have to use that at some point in the future. Thanks
Scott H. says:
Nearly all politicians I’ve encountered, from City Council members to US Senators, are “ethical contortionists,” regardless of party. All of us deserve better representation.
Christine Petty says:
So eloquently stated!
Pete Schloss says:
Thank you Chris.
Steve says:
To right a swamping boat in heavy seas, you sometimes must take measures that would be too far on a calm sea in a right boat. I see nothing wrong with temporarily packing the court with two more seats. There was a time when there were 20 judges on the supreme (or not so supreme) court. The other way of looking at it is that the people of the United States get what they deserve when they are lazy in their thinking and voting habits. Don’t cry, get informed and VOTE!
Pete Schloss says:
Sorry Steve, the US Supreme Court has only once had 10 justices and that briefly in 1863. It has never had more than nine since 1867. Prior to the Civil War the number maxed at 7. There have never been 20.
https://constitutioncenter.org/blog/why-does-the-supreme-court-have-nine-justices
Steve says:
Hmmm. I read where the 20 were there for a very short time in the early 19th or late 18th centuries, but I do not remember the source. It does sound a bit extreme and I’ll defer to you. Cheers!
Pete Schloss says:
And cheers to you my friend!
Pete Schloss says:
I agree the answer is to VOTE!
danryankc says:
I can accept your position on giving Barrett a hearing, and I realize that she will most likely be seated. (The Republican Senators that pledged their votes to the nominee before knowing her identity have announced a failure to live up to their Constitutional duties, but, these days, that is a mere quibble.) I don’t understand your hesitance to expand the Court to address the remarkable unbalance brought about through chance and senatorial misdeeds. Expanding the Court has been done in the past, and our society has grown immensely in population and complexity since then.
Pete Schloss says:
Dan, you make a good point. In its early years the court had five or six Justices. It expanded during the Civil War, briefly to 10, and in keeping with the number of Circuits established. It has remained at nine since shortly after the Civil War. Certainly, an argument can be made that the increase in population and the increase in caseload justifies an approach similar to that taken by the Circuits where a three judge panel may hear a case subject to review by the entire Circuit. If I am not mistaken, expanding the court falls within the jurisdiction of Congress.
Scott H. says:
Hmm…but doesn’t Justice Souter solve the imbalance question? A Bush appointee that obviously was more liberal than imagined and eventually replaced by Sotomayor. Imagine if Bork wouldn’t have been Borked. And Chief Justice Rogers seems to lean a lot more left than even the left could have hoped for. I don’t see catastrophe here by adding ACB. And Alito seems poised to step down soon as well regardless of the election outcome. Peace all.
Pete Schloss says:
Thank you Scott!